Jump to

Denmark

Denmark prosecuted its first case in 1993, but the
Supreme Court found in 1994 that the existing law (Section 252: “wantonly or
recklessly endangering life or physical ability”) did not provide a clear legal
base for conviction. The phrase “fatal and incurable disease” was added in
1994, and HIV was specified in 2001.

There have been at least 18 prosecutions:
at least one failed due to the accused committing suicide. At least ten
involved non-Danish nationals, including seven people of African origin. At
least eleven convictions for either sexual HIV exposure or transmission are
reported. The maximum prison sentence is eight years.

Two of Denmark’s
foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have
recently called for the law’s abolition.1

Estonia

Prior to 2004 at least two men were
convicted of criminal HIV transmission under the existing Penal Code (Articles
118/119, "causing of severe health damage", and/or Article 121,
"physical abuse"). One man was Egyptian and the other man Estonian.
No further information regarding HIV-related prosecutions is currently
available.

Finland

Finland prosecuted its first case in 1989. Both
HIV exposure and transmission are prosecutable under existing assault or
homicide laws. There have been at least twelve prosecutions and seven
convictions, with a disproportionate number of prosecutions of foreign
nationals, particularly those of African and Asian origin, including the most
recent case.2

The longest prison sentence, however, was handed down to a 25-year-old Finnish
male, who was sentenced to ten years in prison in 2008 for five counts of
aggravated assault (for sexual HIV transmission), 14 counts of attempted
aggravated assault (for sexual HIV exposure), and one count of rape. He was
also ordered to pay the 21 female complainants a total of €330,000 in damages.3 A 2009 appeal
increased his prison sentence to twelve years.4

Norway

Norway prosecuted its first case in 1991 under
Section 155 of the Norwegian Penal Code. This infectious-disease law, enacted
in 1902, is known as the ‘HIV paragraph’ since it has only ever been used to prosecute
sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both
disclose HIV status and insist on condom use, the law essentially
criminalises all unprotected sex by HIV-positive individuals even if their
partner has been informed of their status and consents. There is no distinction between penalties for HIV exposure or
transmission.

Both ‘willful’ and ‘negligent’ exposure and transmission are
liable to prosecution, with a maximum prison sentence of six years for ‘willful’
exposure or transmission and three years for ‘negligent’ exposure or
transmission. At least 14 individuals have been prosecuted – all for
heterosexual sex, despite the fact that most HIV transmission in Norway is the
result of sex between men – and all prosecutions have resulted in convictions.

A
coalition of grass-roots and civil-society organisations in Norway is
currently campaigning to abolish Section 155 during the forthcoming revision of
its Penal Code.5

Sweden

Despite the fact
that Sweden
does not have an HIV-specific law, it is likely that it has prosecuted more
people living with HIV per capita for
sexual HIV exposure or transmission than any other country in the world. People
living with HIV are mandated to disclose their HIV status before sex, but
dislosure is only an affirmative defence in HIV-exposure cases and not in cases
where transmission is alleged. There have been least 50 prosecutions and 38
convictions since the first prosecution took place in 1992. The maximum
sentence is two years for HIV exposure and ten years for HIV transmission, the
average sentence being five to seven years, with additional damages, and
deportation for non-nationals.

In 2008, the Swedish Institute for Infectious
Disease Control announced it would no longer assist the police in
investigations of alleged HIV exposure or transmission, although it later
retracted its statement.6 In addition,
public health laws require all HIV-positive individuals to disclose their
status to sexual partners and practise safer sex. These have been used to
forcibly isolate at least 100 people living with HIV. In 2005 the European
Court of Human Rights held that Sweden
had violated the right to liberty and security of an HIV-positive man forcibly
detained for up to seven years.

A recent conference
highlighted the human rights concerns of Sweden’s legal and public health
policies. It heard that a disproportionate number of those convicted are from Africa; that non-nationals receive longer prison
sentences; and anecdotal evidence that suggests HIV-positive people are being
blackmailed in exchange for not being prosecuted.7

United Kingdom

Prosecutions in
the United Kingdom
take place under existing assault laws. These are similar for England, Northern
Ireland and Wales,
although Scotland
has completely different laws. The first UK
prosecution took place in Scotland
in 2001, followed by England
(2003) and Wales
(2005). There have been no prosecutions in Northern Ireland.

Scotland

There is no legislation that specifically
criminalises reckless or intentional HIV transmission in Scotland. The
criminal law was first used in 2001 to find an individual criminally
responsible for HIV transmission under the Scottish common law offence of
‘culpable and reckless conduct’. Since then, the reckless transmission of HIV
alone – as well as HIV and hepatitis C together – has been prosecuted
under this law. Since Scottish law focuses on behaviour (unlike English law
which focuses on the result of such behaviour), exposing others to the risk of
HIV transmission ('HIV exposure'), can, and has, also been prosecuted.

It remains unclear whether disclosure in
the absence of condoms is a legitimate defence to accusations of 'culpable and
reckless conduct’. Scots law does not recognise consent as a defence to an
assault charge,8
and in the absence of an HIV transmission case in Scotland where consent has been
used as a defence, it is unclear whether the law would take a similar approach
to reckless conduct cases. However, it was recently clarified9
that the use of a condom in the absence of disclosure would be a defence even
if transmission subsequently occurred. Four cases have reached the Scottish
courts. Of the three men found guilty, the first was sentenced to five years;10
the second (also convicted of sexually transmitting hepatitis C) to nine years;11
and the third (also convicted on three counts of HIV exposure) to ten years in
prison.12 The fourth man was deemed mentally incapable of standing trial and has been
detained indefinitely in a psychiatric facility.13

England, Northern Ireland and Wales

A 19th-century law can be used
to find an individual culpable for HIV transmission in England, Northern Ireland (NI) and Wales. Two
sections of the Offences Against the Person Act 1861 (OAPA 1861), relating to
‘grievous bodily harm’, can be used prosecute HIV transmission: Section 18,
'intentional transmission' and Section 20, 'reckless transmission'. Whilst it is
also possible to be charged with 'attempted intentional transmission', there is
no such charge as 'attempted reckless transmission’. So far, all prosecutions
that have reached the courts were for 'reckless transmission'.

Although, to
date, only 13 'reckless transmission' prosecutions have reached the English
courts (plus one prosecution in Wales
and none so far in NI), it is believed that many more individuals
– possibly hundreds – have been arrested and investigated.14 There have been eleven convictions. The
longest prison sentence was for ten years (for infecting three complainants);
sentences for infecting one complainant have ranged between two and
four-and-a-half years. Informed consent is an affirmative defence, although it
is still unclear whether condom use is a defence in the absence of informed
consent, if transmission ensues.

Policy15 and
prosecutorial guidelines16 produced by
the Crown Prosecution Service in 2008 have clarified some of the uncertainties created
by two Appeal Court
judgements17 regarding
under which circumstances people living with HIV could be charged for
'reckless' grievous bodily harm. Evidential issues – notably
difficulties proving that the accused infected the complainant(s) and which
have resulted in many cases being dropped18
and at least three individuals being acquitted19
– are highlighted in the CPS documents.

Written
guidance for healthcare workers, first produced in 2005, has recently been
updated.20
Written
guidance for individuals living with HIV, first produced in 2009, has also
recently been updated.21 Written guidance for police investigators was produced for the first time in
2010.22

A writer and advocate on a
range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV
Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap

close

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends
checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member
of your healthcare team for advice tailored to your situation.